In the post, they are kind enough to link to my video (now back up on YouTube thanks to my disputing the Content-ID takedown) as an example of a fair use parody, and to a talk by (former) fellow EFF director Larry Lessig which incorporated some copyrighted music.

However, some of the statements in the post deserve a response. Let me start first that I hope I do understand a bit of YouTube's motivations in creating the Content-ID system. YouTube certainly has a lot of copyright violations on it, and it's staring down the barrel of a billion dollar lawsuit from Viacom and other legal burdens. I can understand why it wants to show the content owners that it wants to help them and wants to be their partner. It is a business and is free to host what it wants. However, it is also part of Google, whose mission is "to organize the world's information and make it universally accessible and useful," and of course to not "be evil" in the process of doing so. On the same blog, YouTube declares its dedication to free speech very eloquently.
As such YouTube does want to avoid the blocking of non-infringing videos while trying to help content owners get rid of actual infringements on the site. These recommendations apply on what to do for partial Content-ID matches where the upload is not simply a verbatim audio/video copy of the content owner's work, but is possibly transformed into something else which may be non-infringing.

Find only, don't takedown.

The simplest plan would be to simply offer the Content-ID system as a means to help content owners find violations but not a means to have them command DMCA-free takedowns, particularly ones that take place when no human being has reviewed the material to assure it is not a protected non-infringement. And it already does this, but it offers more to the content partner, namely the ability to auto-takedown various matches. We at the EFF don't think it is necessary to offer the auto-takedown at all, except on verbatim, un-transformed uploads, but I have heard the complaint that in many cases, infringements are uploaded at a rate faster than a company can individually examine. This surprises me, but if need be, auto-takedown could be offered as a service only to content owners who do indeed get really large numbers of matches for their properties. Those who get only a few might be expected to do a personal inspection to assure takedowns are not done on non-infringing works. There is no need to give them the bulk service. You could set the bar at a workload that it would be hard to deem unreasonable.

Non-immediate takedown

Next, auto-takedown could be made less immediate, if not for new uploads then at least for older uploads which are well established on the site. Is there truly a need for an immediate takedown of videos that have been there for weeks or even years? What is the emergency? Even the more powerful DMCA takedown is not instantaneous. However, if a content owner needs an urgent takedown, let them do it, but only after direct examination of the video. Surely there is not a need for a blanket emergency takedown?

With a non-urgent takedown, the uploader would be notified of the requested takedown, and have some period of time, perhaps just a couple of days, to file a dispute. If they don't, down it goes until they do. This could harm uploaders who are out of touch for a while, but the majority would not be hurt. The content owner would suffer a few more infringements but the cost would be minor. Instead of timing it in days, it could be timed in downloads. Perhaps a very frequently downloaded file would only get a minimum time (one day) to respond. This would inherently limit the damage to the content owner from an actual infringement. Uploaders of files which get really high download rates might expect to be more available to receive notice.

Of course for new uploads, the uploader is present and can file a dispute right there. The video need not go up at all until the dispute is filed on a new upload that matches a fingerprint.

Automatic Dispute

Another alternative would be to allow uploaders to check a box that says, "I made use of copyrighted materials in the creation of this video, but warrant that I did so without infringing copyrights." This would in effect be an "automatic dispute." Checking it could come with the same warnings that come when you try to file a dispute today, about how serious the matter is, and how you are opening yourself up to liability if the claim is false. If you fear that every infringer would routinely check the box, you can be harsh on those who do this falsely, and ban them from YouTube, as you already do when you discover a user is routinely infringing.

With this automatic dispute, your content owner partner can decide then and there to file a real DMCA takedown, the rules for which are already laid out.

Punish Abuse

As noted, YouTube punishes repeat offenders who infringe. YouTube should also consider restricting the actions of content partners who misuse the Content-ID system to do takedowns on non-infringing works. Particularly, if I may make a personal point, if they apply them to works that are critical of the content owner. In your blog post, you write "Rights holders are the only ones in a position to know what is and is not an authorized use of their content, and we require them to enforce their policies in a manner that complies with the law." I fear that the first part of this is quite at odds with one of the core doctrines of fair use -- that it is permitted because criticism of works and their creators is just the sort of thing that the rights owners can't be trusted to judge. (I also think you might not want to cite the dancing baby as an example of infringement. Lenz vs. Universal is an EFF case, and I think you'll find things are going well for the mother of the dancing baby.)

But the second part of the sentence speaks to a solution. The DMCA takedown process, for all its flaws, provides some disincentives to false takedowns. The EFF has helped get judgements against parties who misused the DMCA takedown process to censor speech. The Content-ID takedown process seems to have no disincentive for misuse.

I propose that you fix that. If a content partner misuses the Content-ID system to takedown non-infringing videos multiple times, you should treat them as you treat users who do wrong multiple times. This partner should be barred from using the Content-ID takedown system any further. They can still use it to find infringement, if you wish, but they should be denied the privilege of automatic removal at the very least. I feel that Constantin Films has already gone way over that line. They knew -- it's well documented -- that the majority of the Downfall videos on YouTube were parodies that substantially transformed the underlying work, only used a few minutes from the film and did not harm the market for the film. (These are among the key fair use tests.) Perhaps a few out of hundreds were just clips from the actual film, un-doctored. Another handful at most were of the type which Constantin says were generating "sick, offensive humour" complaints. Not that these are any more infringing than the others; they were simply quite few in number. In spite of that Constantin Films used what could have been a scalpel and used it like a sledgehammer. If this is not an example of misuse, then what is? If YouTube is able to agree that any tool should have checks and balances against misuse, and this doesn't count, then what does?

Thanks for responding

It's good to see you responding. I hope you will find these suggestions constructive. I hope you will continue your dedication to free speech and the company mission of making information available. Google has shown some great leadership in this area of late, and there's no reason the YouTube arm can't carry that torch well.

Fix some bugs

And on a minor technical note, there are a few bugs where the system is not operating as you hoped. I checked my mail logs, I got no notification of the Content-ID takedown. I learned of it first from readers of my blog saying the video was not showing. Once I learned about it, it was not at all easy and clear, even after reading the help system, how to file the dispute. After I filed the dispute, the status page still says, "the video is blocked worldwide" even though it has been re-enabled. When it was re-enabled, it was enabled with embedding disabled, even though it had been embedded beforehand.

Comments

thanks for this post; it is tremendously helpful for those of us who don't really know the playground rules.

i'd like to know your thoughts on whether/how users ought to expect their right (?) to anonymous speech to be protected in cases also involving fair use/infringement issues on youtube. it strikes me that in the moment a user is required to self-identify any/all uses of copyrighted material, practicalities for the sake of one kind of free speech might be pitted against the ideals of another. what would keep the company (either the host or the copyright holder) from using this system of self-disclosure to target the sources of certain kinds of protected speech? ...particularly, in cases of users using a work to criticize the work itself or its creators?

or do users just have to assume the total loss of anonymous speech protections up front, either implicitly (under "let the buyer beware!") or explicitly in the TOS?

my gut says this is important. but it may be entirely specious. either way, your thoughts would be appreciated. or, if you can point me to another resource, that'd work just as well for me. thanks again!

To be truly anonymous, with no path back, is difficult, because if a web site gets a DMCA takedown, they have no means to notify you of it. I guess if you discovered it without notification (not too hard) and you had registered a password or digital signature key, you could then be enabled to anonymously send in a counternotice. I don't know of any site that does this.

Of course, you can be pretty anonymous on YouTube, through the use of tools like TOR (which the EFF in part funded the development of.)

And with fairly secure pseudonymous remailers, you can act on places like YouTube etc. like a real user.

However, don't expect other web sites to go to the mat for anonymous people too often, alas. Not the big corporate ones. Smaller ones (such as wikileaks) are famous for doing so.

Free speech is good, and copyright is good. In almost all cases, there is no real
conflict. Those who demand their right of (possibly anonymous) free speech as a cover
for copyright violations should not be heeded.

Interestingly, Don Henley is arguing that the kind of parody done in most "Downfall" videos -- what I'll call "transformative parody" -- is not in fact protected by Fair Use doctrine, since it doesn't directly comment on the work itself. (background: California Senate candidate Chuck DeVore used the tune from Henley's "All She Wants To Do Is Dance" and wrote new lyrics to create "All She Wants To Do Is Tax", a song mocking Barbara Boxer. Henley claims that it's copyright violation.)

As a side note: The example of Weird Al is instructive, because he gets permission to use the work as the basis for his parody. Although he's acting for commercial purposes, but I think it's well-established that "it's a noncommercial purpose" is neither necessary nor sufficient to have something declared Fair Use.

Weird Al gets permission because that solves the problem in advance. When you do a fair use, you can still be sued, but if you did a proper fair use you will win -- but it's still a complex process you would rather avoid.

He doesn't strictly need permission, but because he makes money from it, it becomes easier for him to get it and pay a little and everybody goes away happy. And let's face it, Weird Al's stuff is not particularly biting, not the sort of stuff to be denied.

There has not been a court ruling, as far as I know, on parody that doesn't speak to the original work. While my video obviously does qualify as criticism, even the videos about unrelated topics like X-box live are sending up the over the top nature of the scene, at least to a small degree, and illuminate the character of the scene in a new way, though that may not be their primary goal.

The blogger (and those in the case) cite "Campbell v. Acuff-Rose Music" (2 Live Crew sampled music and lyrics from Roy Orbison's "Pretty Woman" to create a parody version of the song; Acuff Rose music, who owned the copyright, sued; the Supreme Court found that it was an allowable fair use.)

This was the case, heard by the Supreme Court, where 2 Live Crew made a parody version of "Pretty Woman" which included samples and lyrics from Orbison's original song. The Supreme Court found that this was a justifiable fair use. http://www.law.cornell.edu/supct/html/92-1292.ZO.html

It is the most landmark case of fair use in recent times. However, it did not speak to the nature of the parody. It hinged on things like:

The commercial nature of the 2 Live Crew's song did not stop it from being a fair use

The fact that they parodied the entire song, did not stop it from being fair use, because it was parody. (A news report that replayed the entire song might not be a fair use.)

Most song parodies, such as those by the Capitol Steps (who often cite Acuff-Rose in their jusifications) make some parody of the lyrics, though they often do not change the melody at all. I don't know of a case where this got people into trouble. Of course, since most performance spaces pay Ascap/BMI fees, they have permission to reproduce most music in any event.

So is there still any danger of Constantine issuing a lawsuit, or are you pretty much in the clear now? I'm curious because I'd like to do the same for my Downfall parody, but I'm not willing to go to court for it.

The problem is that even when a lawyer can tell you that you are in the clear, that doesn't stop them from suing you and costing you money. However, if they are really out of line, they can get hit with damages or SLAPP fees for doing so.

That said I would judge it unlikely that they would go after these parodies now, but I judged it unlikely they would do more takedowns of ordinary ones. In the past they were mostly taking down ones with sick jokes.

It seems to me that by caving into the media industry that YouTube, for all their declarations of free speech, has proven that they don't believe in it. One of the claims made by the recording industry against YT was that people won't buy their music since they're seeing/ hearing it for free. So wrong, I personally check my YT playlist for tunes that I'm willing to pay for to carry around in my MP3 players (I have four) but since the RIAA wants to TRY (note the emphasis) make me pay for every snippet of music, I find other ways (legal) of getting my music, for free or very low cost. YouTube is nice but I think by caving into the threat of lawsuits, they've shown themselves to be expendable even if they are popular at this point in time. For now.